Detroit Southern Pipe Line Co.

In the Matter of DETROIT SOUTHERN PIPE LINE COMPANY and IRVING F. PHEILS, AN INDIVIDUAL Case No. C-1922.-Decided January 12, 1942 Jurisdiction : oil products transporting industry. Unfair Labor Practices Interference, Restraint, and Coercion: questioning, advising, warning, and threat- ening employees with respect to union membership ; anti-union statements Discrimination: discharge, charges of, dismissed. Remedial Orders : employer ordered to cease and desist unfair labor practices. Mr. Max W. JoJt tone, for the Board. Mr. Kelly Bell, of Chicago, Ill., for the respondent. Mr. Frederic B. Parkes, 2nd, of counsel to the Board DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed on September 18, 1940, by Irving F. Pheils, an individual, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated May 13, 1941, against Detroit Southern Pipe Line Company, Toledo, Ohio, herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Sec- tion 8 (1) and (3)1 and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, together with notices of hearing thereon; were duly served upon the respondent, Pheils, and International Oil Workers Union, Local 346, affiliated with the Congress of Industrial Organizations, herein called the Union. 1 Paragraph 10 of the complaint stated that matters alleged in preceding paragraphs constituted "unfair labor practices . . . within the meaning of Section 8 ( 1) and (2) . . . of the Act " This was a typographical error and at the hearing the paragraph was amended on motion of counsel for the Board to allege violations of "Section 8 (1) and (3) 38 N. L. R B., No. 42. 159 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the complaint alleged in substance : (1) that on or about August 2, 1940, the respondent dis- charged and thereafter refused to reinstate Irving F. Pheils because of his activities in connection with the Union; and (2) that by such acts and by previous warnings, threats, and statements derogatory to the Union made to Pheils since early in 1937, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 17, 1941, the respondent filed its answer, denying that it had engaged in any unfair labor prac- tices, and affirmatively alleging that it had offered to reinstate Pheils to employment. Pursuant to notice, a hearing was held on May 26 and 27, 1941, in Toledo, Ohio, before Josef L. Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the re- spondent were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, counsel for the Board moved to conform the pleadings to the proof. The motion was granted without objection. Rulings on other motions and on objections to the admission of evidence were also made by the Trial Examiner during the course of the hearing. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Trial Examiner issued his Intermediate Report, dated July 1, 1941,2 copies of which were duly served upon the parties. He found that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such unfair labor practices, and that it take certain affirm- ative action designed to remedy the unfair labor practices. He also found that the respondent had not engaged in and was not engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, and recommended that the complaint be dismissed insofar as it alleged the contrary. On July 19, 1941, Pheils filed exceptions to the Intermediate Report and a brief in support thereof. On July 25, 1941, the respondent filed exceptions.3 The Board has considered the exceptions to the Inter- mediate Report, and the briefs submitted by the parties and, insofar as the exceptions are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. 2 The Inteimediate Report was erroneously dated July 1, 1940. 3 The respondent had previously , on June 13 , 1941, filed a brief with the Trial Examiner. DETROIT SOUTHERN PIPE LANE' COMPANY 161 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Detroit Southern Pipe Line Company, is a Michi- gan corporation. It is engaged in transporting gasoline and fuel oil by pipe lines from Toledo, Ohio, and vicinity, to Hamtramck, Michigan. For this purpose it maintains and operates pumping stations at the Toledo plants of Standard Oil Company of Ohio, The Gulf Refining Company, Sun Oil Company, and The Pure Oil Company. During 1940, it transported approximately 3,750,000 bar- rels of gasoline and approximately 288,000 barrels of fuel oil at regu- larly posted tariffs filed with the Interstate Commerce Commission. The Pure Oil Company, an Ohio corporation, owns "a large portion" of the respondent's common stock and through officers and employees who are also officers and employees of the respondent, "for the most part" dictates and administers the labor relations policy and opera- tions of the respondent. The respondent admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Oil Workers Union, Local 346, is a labor organiza- tion affiliated with the Congress of Industrial Organizations, admit- ting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union was organized in 1936, and Toledo employees of three oil companies and of the respondent's plants at Toledo, Ohio, and Flat Rock, Michigan ,4 became members. Pheils, who was employed by the respondent as a pumper in Toledo, was very active in the Union's or- ganization and membership drive and became its first president. In March 1937, the Union, represented by Pheils and five others, met in Toledo with three representatives of the Pure Oil Company for the purpose of negotiating contracts covering the employees of that company and of the respondent. J. S. Stults, representing the Pure Oil Company as its "personnel man from the Chicago office," confined 4 Flat Rock is 34 miles from Toledo 438861-42-vol 38-12 162- DECISIONS OF NATIONAL LABOR RELATIONS BOARD the negotiations to Pure Oil Company employees and a contract was executed between that company and the Union. Ralph Coe, an employee, testified that in May 1937, George F. Weber, then assistant superintendent of the respondent, asked him whether he belonged to the Union. Weber did not deny Coe's testimony. We find, as did the Trial Examiner, that Weber questioned Coe about his membership in the Union. Coe, in fact, resigned on July 31, 1937. Thereafter, in addition to Coe, seven members of the Union dropped their memberships by October 1, 1937, and two more dropped out about July 1, 1938. Pheils was the sole union employee of the respondent after the latter date. He resigned as president in March 1938, testifying that he did so because of "pressure put on me as being president of the union, at different times" by Weber and Alton F. Shaver, head pumper in charge of the respondent's Toledo operations, "and I was advised to drop out." He explained that beginning in early 1937, Weber and Shaver told him "that John L. Lewis was nothing but a. damn Communist," that unions "were a bunch of trouble makers" and "Communists," that Weber told him "he did not like the unions . . . and he didn't want to have anything to do with the unions," and that Shaver made similar remarks to him. Weber and Shaver denied making anti- union statements to Pheils; Shaver, however, admitted frequent con- versations respecting unions with Pheils in the course of which- he told Pheils "that the union was all right if it was run all right." Pheils testified, without contradiction, that on May 18, 1938, Weber told him that he was "smart" to have resigned as president of the Union. In view of these facts, the uncontradicted testimony of Coe that Weber asked him about his union membership, and all the circumstances, we find, as did the Trial Examiner, that the statements attributed to Weber and Shaver were in fact made by them substantially as testi- fied to by Pheils. Pheils testified that after May 18, 1938, Shaver warned him on several occasions not to try to reorganize the Union, observed that the men had turned him down once, and warned that "I would not bother with it." He further testified that "half a dozen or a dozen times" Shaver made it plain to him that he had better get out of the Union. Pheils answered Shaver that he was "a union man at heart" and always would be. In June or July 1940, on the advice of Clyde Shamblen, a member of the union grievance committee and its former president, Pheils relinquished his union membership.5 He did not inform Shaver of this fact. Shaver denied warning Pheils against s Shamblen testified that inasmuch as there were no other members of the Union in the respondent's employ, the Union considered that "we could not do anything for him much , in case he got into a jam " DETROIT SOUTHERN PIPE LINE COMPANY 163 seeking to reorganize the Union, and maintained that he did not know that Pheils had dropped his union membership. He admitted, how- ever, that he had talked with Pheils about unions and union matters on many occasions, and that Pheils had told him that he "always would be a union man." Under all the circumstances we find, as did the Trial Examiner, that Shaver made the statements testified to by Pheils. We find that by questioning, advising, warning, and threatening employees with respect to their membership and activity in the Union, the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged discriminatory discharge of Pheils On July 30, 1940, while Pheils was working for the respondent at the respondent's station at the Sun Oil Company in Toledo, a pump was damaged and required repairs costing the respondent $267.63 Pursuant to Shaver's instructions, Pheils was interviewed on August 1 by Superintendent Weber and Assistant Superintendent Sewell Evans, at Hamtramck, Michigan, concerning the accident. There- after, Pheils gave Evans a written statement of his version of how the damage was caused. On August 2, Shaver called Pheils by telephone and informed him that he was discharged. On August 3, Shaver called on Pheils personally and handed him his final check. On August 15, Pheils and Shamblen met with R. C. Osterstroms Pure Oil Company's refinery manager at Toledo, and another official of that company. They discussed Pheils' discharge and a number of previous incidents of damage to the respondent's property by em- ployees for which no discipline had been administered. On August 20, Pheils, Shamblen, and an international vice presi- dent of the Union, met with Weber, Shaver, and Osterstrom, in the latter's office. Pheils' case was again discussed at length, as were the other employee incidents. However, Weber, who had authorized the discharge, refused to reconsider his discharge of Pheils. An offer of arbitration was made by the representatives of the Union but the respondent made no commitment. Pursuant to his promise subsequently made to Shamblen, Oster- strom undertook to present Pheils' case to D. D. Irwin, the respond- ent's vice president, when he went to Chicago. Osterstrom did not see Irwin in Chicago, but left a memorandum which Irwin received upon returning from his vacation. On September 3, Pheils wrote O Referred to in the transcript as "Oesterstrom " but shown by the documentary evidence to be correctly spelled as above 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Irwin respecting the matter and on September 10; Irwin replied, in- forming Pheils that the respondent had reviewed the case, sustained Weber's position, and rejected arbitration. On October 3,7 Pheils, accompanied by his counsel, Edward Lamb, met with Kelly Bell, counsel for the respondent, Evans, and Shaver, in Toledo. A Board Field Examiner was also present. Pheils' case was discussed but the respondent did not change its position. About a month later, Lamb informed Pheils that the respondent had offered him back pay to date and a position with it as line-walker.e Pheils rejected the offer. At the hearing, counsel for the respondent stated that the respondent considered that "as a matter of sound oper- ating and personnel policy, in view of Mr. Pheils' length of service with the company, he should have been demoted to a lower position rather than discharged." Much conflicting testimony was received respecting the responsi- bility of Pheils for the damage to the respondent's pump. The re- spondent's witnesses testified that the pump was damaged because Pheils commenced operations without opening the main valve con- trolling the flow of oil from the pipe line to the pump. The record discloses that the respondent's rules of operation hold the pumper responsible for the efficient operation of the station's machinery, that Pheils had not put the Mercoid system, a device which automatically stops the engines when the pressure falls below a certain point, into operation when he came to work, as required by those rules, and that Pheils did not check the reading of certain pressure valves. Pheils' testimony at the hearing is in conflict with a statement made by him after the accident and in part sustains the respondent's position. Pheils contended, however, that he was blameless and that the accident was caused by atmospheric conditions which created a gas in the pump, thus blocking the flow of oil from the pipe line. Pheils stated at the August 20 conference that he believed a lay-off of 2 weeks would have constituted appropriate discipline and testified that although he was not satisfied in his own mind that he was solely responsible for the damage, "I offered that rather than to have any trouble ..." On the other hand the Union, which Pheils helped to organize in 1936, had become completely defunct by October 1937. While Pheils continued as a member until June or July 1940, there is no evidence that he attempted to revive the Union or that the respondent sus- pected that Pheils intended to reorganize the Union. Although the anti-union statements which Shaver and Weber directed to Pheils lend some support to the contention that the respondent discriminated 7 The charge was filed September 18, 1940. 8 When he was discharged , Pheils was earning about $177.57 per month as a pumper. A line-walker is a maintenance man and performs less pleasant and skilled work than does a pumper. The position offered Pheils paid $135 per month at the time. DETROIT SOUTHERN PIPE, LINE' COMPANY 165 against him because of his membership and activities in the Union, we are not satisfied that the record supports the complaint in so far as it alleges that the respondent discriminated against Pheils. We find, accordingly, that the respondent has not discriminated in regard to the hire and tenure of employment of Irving F. Pheils. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take affirmative action to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Oil Workers Union, Local 346, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Detroit Southern Pipe Line Company, Toledo, Ohio, its offi- cers, agents, successors, and assigns shall : 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form, join, or assist labor organizations , to bargain collectively through rep- resentatives of their own choosing , and to engage in concerted activi- ties for the purpose of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places throughout its places of business in Toledo , Ohio, and Flat Rock, and Hamtramck, Michigan, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of the Order; (b) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint , in so far as it alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.